Pre -Trail Procedure in India and France.

A. INTRODUCTION

In the global landscape of criminal justice, understanding the nuances of pre-trail procedures is imperative for ensuring fairness, efficiency, and the protection of individual rights. This research embarks on a comparative analysis of the pre-trail processes in two distinct jurisdiction- India and France. The choice of these countries stems from their diverse legal tradition, with India following a common law system and France operating within the framework of civil law.

B. HISTORICAL DEVELOPMENT

i. INDIA

The historical development of pre-trail procedures in India can be traced back to its colonial legacy. Indias criminal justice system, influenced by the British legal traditions has undergone some gradual modifications over these years. In India, the pre-trial hearing mechanism is not specifically recognized as a defining characteristic of the judicial method, while both theCode of Civil Procedure and the Code of Criminal Procedure(CrPC) include some clauses that may be utilized for this reason. Under the light of the constitution, people imprisoned as undertrials under jails are considered innocent. [1]

ii. FRANCE

Contrastingly, the French legal system has been shaped by the Napoleonic code and the principles of the French revolution. The inquisitorial nature of the system, in which an examining magistrate plays a crucial role, is a testaments to the historical development emphasizing state intervention in the pursuit of justice. Pre-trial detentionis a measure that aims to incarcerate, in a prison, an individual suspected of having committed a crime or an offence and this, before the pronouncement of a judgment. [2]

C. LEGAL FRAMEWORKS

i. INDIA

The constitutional foundation of India establishes the framework for criminal proceedings, with the CrPC of 1973 serving as a pivotal legal document. It governs the pre-trial procedures, defining the roles of law enforcement, magistrate, and the rights of the accused. Key principals such as the presumption of innocence and the right to a fair trail from the bedrock of Indias pre-trial justice system.

ii. FRANCE

The French legal system, based on a civil law tradition, operates under a different set of constitutional principles. The French code of criminal procedure, heavily influenced by the Napoleonic code, outlines the procedures for investigation, examining magistrates roles, and subsequent trail proceedings. The inquisitorial approach seeks to discover the truth by active judicial involvement in the investigation.

D. PROCEDURE

i. INDIA

All criminal cases has to be either cognizable or non-cognizable offence in the pre-trail stage. Cognizable offence means a crime that can be charged without the warrant by a police officer. So in the process of a cognizable offence the following are the stages.

1) FIR (First Information Report)

The officer has to file a FIR under section 154 of CrPC and may take immediate actions to it. Cognizable can be bailable or non-bailable, as per section 2(c) of CrPC. Non- cognizable crime cannot be arrest without a warrant. While FIR needs not be registered.

2) ARREST

Arrest may be with or without a warrant. Arrest with warrant dealt under section 70 to 81 in CrPC. While arrest without is dealt with section 41 to 60A of CrPC. Following the arrest is the booking process, where after it the used is held for detention.

3) BAIL APPLICATION

Accused in the police custody can apply for bail that is to pay some amount in return to be released.

4) ARRAIGNMENT

The defendant makes his first appearance in the court where the judge decides based on his charge sheet whether he is guilty or not of that offence and determines further the bail and its amount or the preliminary hearing or trails dates.

5) PLEA BARGAIN

He defendants agrees to plead guilty but for a lesser charge for that offence. This bargain can be negotiated between the parties to the case or by the judge. In certain cases this process is to expedite the case.

ii. FRANCE

The terms used are procurer (plaintiff) and attendance (accused/defendant). The procurer can file a complaint and the investigation can start from there.

1) CUSTODY

Also called Garde a Vue. The officer can keep the attendance for 24 hours only but if the procurer gives more substantial evidence than the attendance can be kept in police custody for longer duration of time.

2) WARRANT OF ARREST

The judge can issue warrants if the person is not already arrested under the Garde a Vue. There are types of warrants depending on the severity of the crime.

3) MEDICAL EXAMINATION

This process is done to ensure that the accused is medically fit to be detained.

4) ARRAIGNMENT

The defendant like in India courts, is put before the judge and his charges are red out by the judge and decided whether he is guilty or not. If the accused pleas non- guilty then the next stage follows that is the bail hearing, where the person on certain conditions can be issued the bail. If the conditions are not met then no bail is granted.

5) PRELIMINARY INQUIRY AND TRIAL

If the sufficient evidence to take the case to the court is found then only the trial starts. First, determining whether there is enough evidence to issue a trial and second, proving that the guilt beyond a reasonable doubt. If the evidence is found to be insufficient at the preliminary inquiry, the charges against the accused will be dropped, whereas if the evidence is found to be insufficient at the trial, the accused will be acquitted. And the judge met is given. [3]

E. CONCLUSION

This research raises a critical question about the effectiveness and fairness of the pre-trial procedure in both these jurisdictions. The Indias common law inclines more towards adversarial model. The Frances civil law favors the inquisitorial model. Future research could delve into the impact of cultural, historical, and legal traditions on the practical application of the procedure. In realm of the criminal justice, the pre-trial procedure of a nation reflects its commitment to justice, rights and the balance between state intervention and individual liberties.

F. References

[1] The concept of pre-trial in the criminal procedure, available at: https://blog.ipleaders.in/the-concept-of-pre-trial-in-the-criminal-procedure/ (last visited December 6, 2023).

[2] What is pre-trial detention?, available at: https://braunavocat.com/en/pretrialdetention/#:~:text=Pre%2Dtrial%20detention%20is%20a,the%20pronouncement%20of%20a%20judgment( last visited December 6, 2023).

[3] Comparison Of Trial Procedure Between Indian Courts And French Courts, available at:https://www.lawctopus.com/academike/comparison-trial-procedure-indian-courts-franch-courts/ ( last visited December 6, 2023).